Min for Justice v Adams

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 03 October 2011
• Neutral Citation: [2011] IEHC 366
• Court: High Court
• Docket Number: [2010 No. 68 EXT]
• Date: 03 October 2011

Min for Justice v Adams

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 AS AMENDED

BETWEEN:

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

LIAM DOMINIC ADAMS

RESPONDENT

[2011] IEHC 366

[Record No. No. 68 EXT./2010]

THE HIGH COURT

Abstract:

Criminal law - European arrest warrant - Surrender - Northern Ireland -Delay - Fair trial- Pre-trial publicity - Unfair hearing - Past actions - Pre-trial detention - Surrender - European arrest warrant Act, 2003

Facts: The respondent's surrender was sought in Northern Ireland on foot of a European arrest warrant. The respondent contended that the European arrest warrant procedure did not contemplate surrender in 2010 for offences alleged to have occurred prior to 1983. The respondent alleged that the delay thereafter for surrender would result in the respondent being deprived of the right to a fair and public hearing and his fair trial rights pursuant to Article 6 ECHR on account of unfair pre-trial publicity. The question arose as to the specificity of the timing, dates and places of the charges and the absence of pre-existing judicial decision on which to base the warrant pursuant to the provisions of the European arrest warrant Act 2003, as amended. The respondent was apprehensive inter alia about being subjected to an oppressive regime of pre-trial detention in Northern Ireland.

Held by Edwards J. that the Court was not disposed to uphold the various specific objections raised by the respondent to his surrender. The Court was satisfied that the requirements of the Act had been met and in the circumstances it would make an order for surrender.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Edwards delivered on the 3rd day of October, 2011.

Introduction

2 The respondent's rendition is sought by the United Kingdom of Great Britain and Northern Ireland (hereinafter "the U.K.") on foot of a European arrest warrant issued by a competent judicial authority in Northern Ireland on the 26 ^th January, 2010, so that he may be prosecuted in Northern Ireland for the eighteen alleged offences particularised in said warrant. That warrant was subsequently endorsed for execution in this jurisdiction by the Irish High Court (Peart J.) on the 3 ^rd March, 2010.

3 The respondent was arrested on the 4 ^th March, 2010, by Sergeant James Kirwan at the Bridewell Garda Station, Dublin 7, but does not consent to his surrender to the issuing state. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended, (hereinafter referred to as "the Act of 2003") directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s. 16 of the Act of 2003.

4 The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as no such concessions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied. This Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that the requirements have been so satisfied.

5 Insofar as specific points of objection are concerned, a lengthy and detailed points of objection document has been filed, and it is appropriate at this stage to quote in full the substantive points of objection raised:-

6 2 "2. The Respondent is entitled to be provided with professional legal advice and representation. Allied to that (in light of prevailing jurisprudence regarding the onus on the requested person) is the facility for his legal representatives to procure evidence required to substantiate any points of objection. The Respondent (sic) has failed and/or refused to provide resources to the Respondent pursuant to the Attorney General's scheme to professionally accumulate the material written and broadcast concerning the Respondent herein concerning the charges the subject matter of the European Arrest Warrant. Unless and until the Respondent is provided with the required facility he is not being provided with meaningful legal representation and advice.

WITHOUT PREJUDICE TO THE FOREGOING

7 3. The Respondent contends that the European Arrest Warrant procedure and the Framework Decision did not contemplate the surrender of a person in 2010 for offences which are alleged to have occurred prior to 1983, in circumstances where a file was submitted to the Director of Public Prosecutions on the 14th of April 1987, and thereafter there followed a delay of 12 years before a direction of no prosecution issued on the 7th May 1999. The Respondent, if surrendered, would be deprived of a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law as provided for in Article 6 of the ECHR. The surrender of the Respondent offends the principle of proportionality.

8 4. The surrender of the Respondent on the basis of the European Arrest Warrant herein would be otherwise than in accordance with section 11 of the European Arrest Warrant Act, 2003 (as amended), and Article 8 (e) of the Framework Agreement in that the said warrant does not specify, adequately or at all, the date and location of the alleged offences.

9 5. The surrender of the Respondent on the basis of the European Arrest Warrant herein would be otherwise than in accordance with section 5 and section 38 of the European Arrest Warrant Act, 2003 (as amended), insofar as same pertains to offence no. 1, in that the facts which purport to constitute the basis of this alleged offence of indecent assault do not correspond to an offence in the State.

10 6. The Respondent intends that the issue of whether or not the Respondent will be subjected to an unfair trial is a matter of adjudication by the Irish courts and it is contended that the Minister for Justice v. Stapleton was wrongly decided. This is particularly so when the charges are of such antiquity, vague in location and time, where a decision was previously taken not to prosecute in 1999, where there have been significant changes disadvantageous to the Respondent, in relation to both the trial procedure (anonymity of accused/challenges to jurors) and the extradition procedure (absence of a right of appeal without certification) and where the delay in laying charges has permitted a situation to develop where the Respondent who had moved on with his life has now been widely condemned and viewed as a guilty man. The 8th recital to the Framework Decision acknowledges that the decisions on the execution of the European Arrest Warrant must be subject to sufficient controls and requires that a judicial authority of the Member State where the request of the person has been arrested must take the decision on his or her surrender. The scrutiny of the executing judicial authority is required to safeguard the integrity of the extradition process itself.

11 7. The surrender of the Respondent is prohibited by part three of the European Arrest Warrant Act 2003 (as amended), in that the surrender of the Respondent would be incompatible with the State' obligations under the Convention (in particular Article 6) and/or the Constitution (in particular Article 38). The Respondent should not be surrendered to the issuing State to be subjected to a trial in circumstances were such trial cannot occur otherwise than in breach of Article 6 of the Convention and in breach of his constitutional rights and specifically in circumstances where he does not enjoy the presumption of innocence. The issuing State has failed to ensure that the Respondent will obtain a fair trial by causing, allowing or permitting untrue assertions of his guilt to be disseminated throughout the media, by inter alia, a member of the legislative assembly and member of Parliament and President of the leading political party. The issuing State has failed to take any steps to prevent this occurrence and has failed to ensure that persons in the position of the Respondent retained their anonymity and/or are not the subject of widespread condemnation in advance of trial.

12 8. The surrender of the Respondent is prohibited by Part 3 of the European Arrest Warrant Act 2003 (as amended), in that the surrender of the Respondent would be incompatible with the State's obligations under the Convention and/or the Constitution, by reason of the delay since the alleged offences and the consequent prejudice suffered by the Respondent. All the charges the subject of the request allegedly occurred prior to 1983. An investigation file was submitted to the Director of Public Prosecutions on the 14th of April, 1987. There was then a delay of 12 years before a direction of no prosecution issued on the 7th of May, 1999. No further steps were taken in furtherance of a prosecution until 2007. The delay has prejudiced the Respondent. (1) Since the alleged occurrence of these offences, the issuing State effected a change in the law and determined that those persons facing rape charges were no longer entitled to retain their anonymity. (2) Further by delaying in bringing charges the laws of contempt of court have not been available to protect the integrity of the trial process and the Respondent's right to a fair trial by an impartial adjudicator(s). In consequence thereof the Respondent has been widely condemned as a guilty man throughout all forms of media by persons of repute and holding public positions of authority. The Respondent consequently faces a real risk of an unfair trial. (3) The unfairness is compounded by the fact that the...